Wright & Taylor, Inc. v. Smith

• Decision Date: 23 May 1958
• Citation: 315 S.W.2d 624
• Parties: WRIGHT & TAYLOR, INC., Appellant, v. Cleo SMITH Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 624

315 S.W.2d 624

WRIGHT & TAYLOR, INC., Appellant, v. Cleo SMITH Appellee.

Court of Appeals of Kentucky.

May 23, 1958.

Rehearing Denied Sept. 19, 1958.

Lively M. Wilson, Stites, Wood, Helm & Peabody, Louisville, for appellant.

Julius Leibson, Louisville, for appellee.

BIRD, Judge.

This appeal is taken from a judgment against Wright & Taylor, Incorporated, in the sum of $3,000. The appellant is owner of the Francis Building in Louisville, Kentucky. Appellee claims to have been injured in a basement hallway of appellant's building and charges appellant with negligence in maintaining the premises.

We find an accurate statement of facts in appellant's brief and we quote: 'Appellee is employed by Maud Muller Candy Company, in the Francis Building, in Louisville, as a maid. As such, her job required her to clean up the store and carry out the day's accumulation of waste. In doing this she would walk down the steps to the basement of the building and through the hallway, or corridor of the basement, to rear of the building. In the floor of the basement corridor there is a small grease trap which serves the basement storeroom leased to Maud Muller. The trap has an iron cover similar to a manhole cover, only much smaller in diameter, and this cover fits into a rim and is flush with the basement floor.

'During the previous tenancy of the storeroom it was necessary to clean the grease trap periodically. Since Maud Muller leased the premises in 1954 it has not been necessary to remove the cover for cleaning the trap or for any other purpose. The portion of the hallway, or corridor, in which the grease trap is located is used in common by other tenants of the building, as well as Maud Muller. The Gem Shop and Topper's Restaurant use the corridor for making deliveries to their storerooms in the basement. Often these deliveries are heavy, bulky packages.

'On the occasion in question the appellee was taking out the waste that had accumulated in the storeroom of Maud Muller. She had a large waste can which she was carrying on a small two-wheeled hand truck. She testified that as she went out with the truck she did not pass over the grease trap but as she was coming back, after emptying the waste can, she rolled the truck over the cover of the grease trap and as she stepped on it with her left foot the cover gave way and her left leg went into the trap. * * *

'The appellant did not lease that portion of the premises on which the accident occurred, but retained possession thereof for the common use of all tenants. * * *'

In Home Realty Co. v. Carius, 189 Ky. 228, 224 S.W. 751, we expressed concisely the landlord's duty under similar circumstances and we quote:

'* * * Where a landlord leases separate parts of the same building to different tenants and retains exclusive control of certain portions thereof, such as steps, stairways, halls, etc., which are used in common by all the tenants, the landlord is under an implied obligation to use reasonable diligence to keep such reserved parts in safe condition for the use of the tenants. As to the portion of the premises which he has leased, the landlord is exempt from liability to repair both as regards the tenants and third persons, for the reason that he has surrendered to his tenants exclusive possession and control of the respective leased premises. The parts of a building which are subject to the necessary use which the tenants may make of them in connection with their enjoyment of the possession and use of their separate apartments must be kept in repair by the landlord, not because of any contract on his part, express or implied, but because of the supervision and control which he still retains over all parts of the premises not expressly demised to his tenants.' See also Carver v. Howard, Ky., 280 S.W.2d 708.

It is insisted by appellant that the evidence introduced shows no breach of such duty and that the court erred in not granting a directed verdict. This is urged as the principal ground for reversal of the judgment and we shall deal with it first. Appellee is the only person who testified as to how the injury was inflicted and the substance of her testimony has heretofore been stated. She used a physician to prove her disabilities and the building superintendent to prove that the hallway, manhole, and manhole cover were in the exclusive control of the appellant. She made no effort to specify any particular cause for the tilting of the manhole cover. Obviously the case could not have been submitted to the jury except upon application of the res ipsa loquitur doctrine. Appellant insists that the doctrine should not have been applied, because of the absence of elements requisite to its application. In the case of J. C. Penney Co. v. Livingston, Ky., 271 S.W.2d 906, 908, we pointed out the three essential elements as follows:

'In line with the weight of authority, this court has held that the principle of res ipsa loquitur may be invoked only when there are present three essential elements: (1) the instrumentality must be under the control of the defendant; (2) the circumstances, according to common knowledge and experience, must create a clear inference that the accident would not have happened if the defendant had not been negligent; (3) the plaintiff's injury must have resulted from...